GAX v The Queen [2016] HCATrans 304 (16 December 2016)
Last Updated: 19 December 2016
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B46 of 2016
B e t w e e n -
GAX
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
FRENCH CJ
BELL J
KEANE J
TRANSCRIPT OF PROCEEDINGS
FROM SYDNEY BY VIDEO LINK TO BRISBANE
ON FRIDAY, 16 DECEMBER 2016, AT 9.39 AM
Copyright in the High Court of Australia
MR M.J. COPLEY, QC: If the Court pleases, I appear on behalf of the applicant. (instructed by Macrossan & Amiet Solicitors)
MR M.R. BYRNE, QC: If the Court pleases, I appear with my learned friend, MS S.J. FARNDEN, on behalf of the respondent. (instructed by Director of Public Prosecutions (Qld))
FRENCH CJ: Yes, Mr Copley.
MR COPLEY: Your Honours, in this case, the applicant appealed to the Court of Appeal contending that the verdict of guilty on one count of indecently dealing with his daughter was unreasonable, and also contending that the acquittal on two other counts of indecent treatment was inconsistent with the conviction on that count. The position is that the first ground of appeal about unreasonable verdict failed, but the complaint is that it was not dealt with according to law.
Her Honour Justice Atkinson delivered the judgment for the majority in the Court of Appeal, and your Honours can see in the judgment at application book 37, at paragraph [25], that her Honour correctly stated the test for an unreasonable verdict concerning:
whether or not it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of count three –
FRENCH CJ: So your complaint is not that her Honour misstated the applicable principle but rather that she did not apply it.
MR COPLEY: She simply did not, in the result, apply the test to the facts. She did not, the complaint is, make an independent assessment of the evidence concerning its sufficiency and quality. She did not weigh the evidence. She did not assess its capacity to support the verdict. What occurred, if your Honours were to plot it through her judgment, was this. She set out the evidence that was relevant to count 3 from paragraphs [26] through to [34] and that involved - - -
FRENCH CJ: Do you say that is anything other than an adequate review of the evidence?
MR COPLEY: Well, it noted all the relevant aspects of the evidence; that is the case, yes. Unusually, the recitation of the complainant’s evidence began by, at paragraph [27], beginning at a point later in her evidence in-chief than her evidence in-chief actually started, and I can illustrate that point to your Honours by referring you to paragraph [29] where you see that her Honour records that the:
prosecutor interrupted the complainant when she started to say what she was told by asking her to only relate what she remembered.
It was important, in my submission, for the court to be mindful of how the complainant’s evidence unfolded in this case because it has great significance, and the way it unfolded accurately appears at paragraph [4] of the dissenting judgment of the President at page 33, where the complainant said that “The light had been turned on”, her mother had entered and the complainant said her underwear were down at her ankles. She did not know how they got there; all she knew was that her father “had just hopped off the bed”. Then she was asked:
What was he doing while he was on the bed?- - - Well, I was asleep before and ended up finding out what happened, but - - -
Then she was asked not to talk about what she had been told but about what she had actually experienced. That, in my submission, is a very important commencement point for her evidence because it reeked of a reconstruction.
Now, her Honour Justice Atkinson briefly referred to the other two counts at paragraph [35]. Then she referred to the summing-up, and at paragraph [36] she began by saying that the summing-up in a large part provided an explanation for the different verdicts. Well, that is an observation of relevance to the second complaint about inconsistent verdicts which none of the members of the Court of Appeal were prepared to allow the appeal on.
Then, on page 40 from paragraphs [41] to [42] is set out the submissions made by counsel for the appellant to the Court of Appeal. Then under the “Consideration” heading we come to where one would expect to find the weighing up and the assessing of the adequacy of the evidence to support the verdict. But what one sees there is, beginning at paragraph [43] and going into paragraph [44], a consideration of the strength of the evidence about count 3 and noting that there was some corroboration or some independent support for the complainant’s assertion that her father was in the bed at a time when her underwear were either right down or down about an inch or so, according to her mother.
Then at paragraph [46] through to paragraph [48], all of the language is redolent of her Honour directing her attention to the question of an inconsistent verdict because paragraph [46] opens with:
The difference in the strength of evidence on count three readily accounts for the difference in the verdicts. The different verdicts tend to suggest –
Then the sentence after that speaks of:
a rational distinction between the strength of the evidence on each of the three counts –
Paragraph [47] begins with the complainant giving much more detailed evidence regarding count 3, it being supported by mother and sister, and then it really is very clear, in my submission, that her Honour is really only confining herself to the inconsistency point because she quotes the well-known passage from MacKenzie v The Queen in paragraph [47] which is the passage concerning finding a way to reconcile apparently inconsistent verdicts.
Then at [48], her Honour again uses the expression “inconsistency of verdicts”. Her conclusion regarding inconsistency of verdicts is at paragraph [49] where her Honour says, probably correctly too, that there was a difference in the “quality of the evidence for count three” compared to one and two, hence that was the rational explanation for the different verdicts. Then her Honour turns, in my submission, to the first ground of appeal which was unreasonableness of verdict and it is dealt with this way:
It –
and “it” can only be a reference to the different quality of the evidence concerning the three counts:
also shows that the verdict of the jury should not be set aside on the ground that it was unreasonable –
But the complaint is that that is tantamount to this: that because the girl’s evidence was better on count 3 than her evidence on counts 1 and 2, and because there was some support for her evidence about count 3, then the verdicts were simply reasonable and that - - -
BELL J: What I understood from President McMurdo’s dissenting analysis was that in relation to the incident charged in count 3, there was corroboration in the sense of circumstances that created lively suspicion but her Honour’s point was no evidence of any cogency as to the commission of the offence itself and your point is the majority do not engage with that criticism at all.
MR COPLEY: No, they do not, they do not. This was, of course, a point that was made at the appeal hearing and it is respectfully submitted her Honour Justice McMurdo did in the many paragraphs – or the paragraphs between paragraph [16] at application book 36 and [19] at application book 37 undertake the very exercise required by this Court of an
intermediate appellate court, and her Honour came to the conclusion she did.
But that exercise is not to be seen in the majority in the judgment of Justice Atkinson agreed to by Justice Morrison, and so the complaint is that this appeal simply was not determined according to law. There was no application of the evidence to the test as laid down in SKA, therefore there has been an individual miscarriage of justice. Thank you, your Honours.
FRENCH CJ: Yes, thank you. Yes, Mr Byrne.
MR BYRNE: If it please the Court, it is clear that the complaint is in relation to an individual miscarriage of justice. There is no submission to suggest that there would be any explanation of existing principle or development of principle. This is a visitation case. The authorities from this Court are clear. The majority in SKA v The Queen, of which your Honour Justice French was a member, make it clear that the task is for the Court to independently assess the evidence. There the error was identified that the intermediate appellate court did not itself weigh - and that is my emphasis – weigh the competing evidential aspects of one part of the factual allegations in that matter.
The Court in BCM v The Queen went on to note that there is a necessity for the appellate court’s reasons to disclose its assessment of the capacity of the evidence to support the verdict. This is the heart of the complaint that is before the Court this morning. It has been accepted that all relevant matters are contained within the factual summary at paragraphs [26] through to [34] of the judgment of Justice Atkinson.
Some criticism is made of the fact that at paragraph [29] her Honour does not set out the whole of the passage. I will be coming back to [29], but it is an important aspect and, indeed, that is the very word or terminology that her Honour Justice Atkinson used. It is an important aspect that the witness, the complainant, was in effect told to only testify as to what she remembered, not what she ended up finding out.
Your Honours, it is trite, if I may take the time, to say that there is no requirement for a formulaic approach to the assessment and consideration of the evidence and there is no one right way to write the judgment. It is clear - - -
KEANE J: Mr Byrne, we can accept, I think, that what you say is right, that it is not a question of applying formulas or templates, but when one looks at paragraphs [16] to [19] of the President’s reasons where her Honour assesses the evidence for herself, is it correct to say that one does not see anything that resembles that evaluation or any discussion which answers the concerns that the President raises in those paragraphs in the judgment of Justice Atkinson?
MR BYRNE: It is. We accept the case that Justice Atkinson’s judgment does not delve to the same level of detail. It is our submission that the question is not whether more could have been written but whether what was written was sufficient in the circumstances. Can I take the Court then to delve into aspects of Justice Atkinson’s judgment?
The applicant in the written material contends that there was no evaluation of the evidence disclosed in her Honour’s factual summary, and also that paragraphs [43] to [48] were directed only to the grounds of inconsistency of verdict. Our submission is it is clear on a fair reading of the judgment that her Honour has blended the considerations into the one judgment and we submit that that per se is not impermissible. We also contend that what is put against us in writing is incorrect.
Could I take your Honours to paragraph [29] of Justice Atkinson’s judgment at page 38 of the application book? The use of the word “Importantly” there denotes a recognition of the significance of the fact that the complainant was brought back to recounting her recollection rather than a hearsay account. Our submission is that one word in itself indicates a conclusion being brought as to the significance of the evidence and a weighing of the evidence by the author of the judgment, Justice Atkinson.
Could I take the Court to paragraph [43] under the heading of “Consideration”? This touches upon the point raised by Justice Bell. At paragraph [43] in the first line:
The complaint’s evidence was –
and now my emphasise:
supported in important ways by her mother and sister –
It was an evaluation. It is the conclusion, again, which is reached as to the effect of the body of evidence from the mother and the sister. Paragraph [43] over the page on the fourth line at page 41 talking about had there been any suggestion, which was not raised, “would have been plainly ridiculous”, again, an observation as to the state of the evidence and a conclusion as to the weight that could be given to any such consideration.
BELL J: All that serves to do, Mr Byrne, is to establish, as President McMurdo accepted, there was cogent evidence of reasons for the mother’s suspicion for the placement of the asterisk in the calendar and the like, but at the end of the day, it was necessary for there to be proof beyond reasonable doubt of a specific offence and in that context one does not see any analysis in the majority reasons of how their Honours addressed that level of satisfaction against the matters that President McMurdo identified, in particular in paragraph [4]:
Well, I was asleep before and ended up finding out what happened –
her acceptance that she had an unreliable memory and the like.
MR BYRNE: We submit that when one looks at those features that I have taken the Court to, together with a couple of matters that I am about to come to, can I go to those before I directly answer your Honour Justice Bell, so that I lay some foundation for my ultimate submission there. At paragraph [44] in the second line there is the reference to the “compromising position” which we accept only goes so far as to be a form of support and not direct corroboration. We do not contend otherwise, but it is still a conclusion as to the state of that evidence.
In the same paragraph in the fourth line, her Honour refers to “relatively minor inconsistencies” between the version of events and other witnesses. That stands in contrast to the assessment of Justice McMurdo on the same topics at paragraph [18] on page 36, where her Honour considered the inconsistencies were “more than minor”, both of which are assessments which are being made by the different judicial officers.
At paragraph [45], the concluding words starting on the second-last line are a conclusion of adding “credibility and reliability to the complainant’s evidence”. There then is at paragraph [46] in the first sentence, paragraph [47] in the first sentence and at paragraph [49] comparisons as to the relative strengths of the evidence which the applicant contends are considered by the Court of Appeal by Justice Atkinson only for the basis of the inconsistent verdicts ground.
Our submission is that it is necessarily inherent in doing that, in considering the relative strength of the evidence to understand whether there is an injustice which has occurred, that there has been an assessment of the evidence on count 3, and hence, the conclusion has necessarily been reached, in light of those earlier passages that I have taken the Court to, that the court has independently conducted its task. It has in fact weighed the evidence. We accept that it has not expressed it in the same detail that Justice McMurdo has but we return to the proposition that there is no one right way to write the judgment and the question is not whether more could have been written but whether what was written was sufficient and our submission is that it was.
A legitimate difference of opinion between judicial officers will necessarily occur on some occasions when they are undertaking – each undertaking their independent assessment of the evidence. It is our submission that – and perhaps a little trite, but our submission that the mere fact there is a dissenting judgment does not, of course, of itself indicate - - -
FRENCH CJ: Well, I do not think anybody is suggesting that.
MR BYRNE: No, but when it boils down to the differences in the judgments – that has been grasped, of course, with respect, by Justice Bell in the discussions that we have been having and that she raised with my learned friend. But it boils down to the proposition of whether the jury could be satisfied beyond reasonable doubt that the child, or the complainant, was recounting the events from her own recollection rather than as a hearsay account.
The witness was brought specifically back – importantly brought specifically back to recount her own recollection. Our submission is that there is simply nothing to suggest that – or insufficient to suggest that she should not have been believed in that respect. It is submitted that the respect given to the function of the jury is, of course, to be respected and should not be second guessed at this stage. I am reminded of the passage in paragraph [44] in Justice Atkinson’s judgment. Her Honour specifically noted in the last sentence that:
The jury were entitled to accept that the risk of reconstruction was avoided by the prosecutor –
They are our submissions.
FRENCH CJ: Thank you. Mr Copley, we will not need to trouble you at all. There will be a grant of special leave in this matter. Estimate, half a day?
MR COPLEY: Yes, your Honour.
MR BYRNE: I agree, your Honour.
FRENCH CJ: Yes, all right. Gentlemen, there is a timetable which I direct your attention to which has to take into account, of course, the closure of the Court during the Christmas period, so I would ask you to have regard to that. Thank you.
AT 10.01 AM THE MATTER WAS CONCLUDED